holding that an expert’s testimony that warning labels were inadequate was not reliable, and thus was not admissible, given that the expert did not draft or test an alternative warning
How later courts described this case
- holding that an expert’s testimony that warning labels were inadequate was not reliable, and thus was not admissible, given that the expert did not draft or test an alternative warning
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MARVIN FULFORD, ET AL. CIVIL ACTION
VERSUS
CLIMBTEK, INC., ET AL. NO.: 16-00016-BAJ-EWD
RULING AND ORDER
Before the Court is Defendants’ Daubert Motion (Doc. 187) to exclude the opinions
of Piaintiffs’ expert, Dr. Thomas Shelton. For the reasons that follow, the Motion
(Doc. 187) is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
Plaintiffs allege that on February 2, 2015, Marvin Fulford was servicing a
suspended heating unit using an articulated ladder manufactured, distributed, and
sold by Defendants at the LSU Sweet Potato Research Station near Winnsboro,
Louisiana. (Doc. 102 at p. 3-4). Plaintiffs allege that the ladder suddenly collapsed,
causing Mr. Fulford to fall and suffer serious bodily injuries. (Ud. at 4).
Plaintiffs hired Dr. Shelton to opine on the cause of the accident. (Doc. 187-5
at 2). They offer Dr. Shelton, an engineer, as an expert in mechanical engineering,
material sciences, metallurgical engineering, and failure analysis. (Doc. 250 at 201).
In his report, Dr. Shelton opines that the hinges on the ladder were in the “false
locked” position when Plaintiff started to climb it, and that the lock bolts moved out
of the lock position as he was climbing, thus causing the accident. (Doc. 187-5 at 19).
Defendants move to exclude Dr. Shelton’s opinions under Federal Rule of Evidence
702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1998). (Doe.
187). Plaintiffs oppose. (Doc. 208).
Il. LEGAL STANDARD
An expert qualified by knowledge, skill, experience, training or education may
present opinion testimony if (1) the expert’s specialized knowledge will help the jury
understand the evidence or determine a fact in issue; (2) the testimony is based on
sufficient facts or data; (8) the testimony is the product of reliable principles and
methods; and (4) the expert has reliably applied the principles and methods to the
facts of the case. Fed. R. Evid. 702. The party offering expert testimony bears the
burden of showing that the testimony is reliable. Sims vu. Kia Motors of Am., Inc., 839
F.3d 393, 400 (5th Cir. 2016).
i. DISCUSSION
Defendants raise three arguments in support of their Daubert motion. First,
Defendants argue that Dr, Shelton’s opinions regarding instructions or warnings
should be excluded as he is not an expert in instructions or warnings. Dr. Shelton
concedes that he is not an expert in instructions or warnings. (Doc. 250 at 52). Dr.
Shelton also concedes that he has never written instructions for any type of consumer
product. Ud. at 53). Thus, Defendants’ Daubert motion is granted insofar as it rests
on this basis. See Bourelle v. Crown Equip. Corp., 220 F.3d 532 (7th Cir. 2000)
(holding that an expert’s testimony that warning labels were inadequate was not
reliable, and thus was not admissible, given that the expert did not draft or test an
alternative warning); Brown v. Raymond Corp., 318 F. Supp. 2d 591 (W.D. Tenn.
2004), aff'd, 432 F.3d 640 (6th Cir. 2005) (holding that in a products lability action
arising from an accident involving a forklift, the testimony of the plaintiffs proposed
expert witness regarding whether the manufacturer of the forklift should have
provided additional warnings was not admissible because the witness had not
prepared any alternative warnings and did not testify that additional warnings would
have prevented the accident).
Second, Defendants argue that Dr. Shelton’s experience with articulating
ladders is very limited. Dr. Shelton has not designed any type of ladder, has never
been to a ladder manufacturing facility, and has never conducted American National
Standard Institute (ANSI) testing on articulating ladders. (id. at 63-65). However,
as described above, Plaintiffs are offering Dr. Shelton as an expert in failure analysis.
Ud. at 201). Failure analysis involves an evaluation of the components of a product
that are either not functioning or have failed to determine the mode of failure and the
factors that contributed to the failure. Ud. at 12). Thus, Dr. Shelton’s expertise is
not specific to a single item; failure analysis spans an array of items. Indeed, Dr.
Shelton has conducted failure analysis testing on various types of products, such as
pressure vessels, heat exchangers, and shafts in motors. Id. The Court also notes
that Dr. Shelton has previously been accepted as an expert in four different cases
involving ladders. (id. at 90). Defendants’ arguments challenging Dr. Shelton’s
experience with articulating ladders are unpersuasive.
Finally, Defendants argue that Dr. Shelton has refused to demonstrate how he
placed the ladder in the “false locked” position. At the Daubert hearing, Dr. Shelton
explained how he manipulated the ladder to put it in the false lock position. Ud. at
75-76). Using the accident ladder, he then demonstrated how he placed it in the false
lock position. (Ud. at 194-195). Dr. Shelton repeatedly testified that, though he
personally observed the ladder engage into the false lock position on its own, he was
not able to document it because it is a rare occurrence. Ud. at 76, 197-99).
Dr. Shelton may base his opinions on facts or data in the case that he has been
made aware of or personally observed. Fed. R. Evid. 708. The Fifth Circuit has
repeatedly opined that courts have “wide latitude” in determining the admissibility
of those opinions. See, e.g., Bear Ranch, L.L.C. v. Heartbrand Beef, Inc., 885 F.3d
794, 803 (5th Cir. 2018). The Court concludes that Dr. Shelton’s opinions are based
on “sufficient facts or data.” Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d
194, 199 (5th Cir. 2016). Defendants’ questions as to the bases of Dr. Shelton’s
opinions go to their weight, not their admissibility. Primrose Operating Co. v. Natl
Am. Ins. Co,, 382 F.8d 546, 562 (5th Cir. 2004). The Court therefore denies
Defendants challenge to Dr. Shelton’s opinions. Defendants will be provided a full
opportunity to examine Dr. Shelton on his findings at trial.
IV. CONCLUSION
Accordingly,
IT IS ORDERED that Defendants’ Daubert Motion (Doc. 187) to exclude
the opinions of Plaintiffs’ expert, Dr. Thomas Shelton, is GRANTED IN PART and
DENIED IN PART.
Baton Rouge, Louisiana, nic, of January, 2020.
JUDGE BRIAN >
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA